The opinion of the court was delivered by: THOMAS A. WISEMAN, JR.
Before the court is the defendant's motion to argue the issue of punishment to the jury. After considering the historical role of the jury in our criminal justice system and the constitutional constraints on sentencing, this court grants the defendant's motion.
Douglas E. Datcher has been indicted for attempted distribution of a controlled substance, for conspiracy to distribute this substance, and for the use or carrying of a firearm in connection with this attempted distribution. If Mr. Datcher is convicted of the first charge only, he faces a substantial penalty.
If Mr. Datcher is convicted additionally of one or both of the remaining charges, he faces a significantly greater penalty.
Mr. Datcher faces, in short, a serious threat to his liberty.
Cognizant of this fact, Mr. Datcher desires that the jurors be likewise cognizant, in hopes this awareness would impact their deliberations over his guilt or innocence. In essence, Mr. Datcher hopes that the jury, when it learns of the draconian sentence hanging over his head, would deem this penalty too great for any offense Mr. Datcher may have committed and thus let him go free. This is an argument for the right of the jury to have that information necessary to decide whether a sentencing law should be nullified. This is not an argument for the right to have the jury instructed on jury nullification.
The drafters of the Constitution "clearly intended [the right of trial by jury] to protect the accused from oppression by the Government." Singer v. United States, 380 U.S. 24, 31, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965) (citations omitted); see Duncan v. Louisiana, 391 U.S. 145, 152-57, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968) ("The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government."). Part of this protection is embodied in the concept of jury nullification: "In criminal cases, a jury is entitled to acquit the defendant because it has no sympathy for the government's position." United States v. Wilson, 629 F.2d 439, 443 (6th Cir. 1980). "The Founding Fathers knew that, absent jury nullification, judicial tyranny not only was a possibility, but was a reality in the colonial experience."
Although we may view ourselves as living in more civilized times, there is obviously no reason to believe the need for this protection has been eliminated. Judicial and prosecutorial excesses still occur,
and Congress is not yet an infallible body incapable of making tyrannical laws.
The power of a jury to nullify extends back to seventeenth century England. In Bushell's Case Vaughn. 135, 124 Eng. Rep. 1006 (C.P. 1670), William Penn was acquitted of unlawful assembly notwithstanding damning facts, and Justice Vaughan, rather than impose fines or terms of imprisonment on the jurors as had been the custom, held that acquittal was a judicial act punishable only by attaint, an obsolete penalty by 1670. The roots of jury nullification in this country reach back to 1735 and the prosecution of Peter Zenger for seditious libel. There the defendant admitted the facts charged but pleaded non-culpability, and the jury acquitted. See J. Alexander, A Brief Narration of the Case and Trial of John Peter Zenger (1963); see also United States v. Dougherty, 154 U.S. App. D.C. 76, 473 F.2d 1113, 1130 (D.C. Cir. 1972). "In the century following the Zenger case, it was generally recognized in American jurisprudence that the jury, agent of the sovereign people, had a right to acquit those whom it felt it unjust to call criminal." Everett v. United States, 119 U.S. App. D.C. 60, 336 F.2d 979, 986 (D.C. Cir. 1964) (Wright, J., dissenting) (footnote omitted).
The Supreme Court has consistently endorsed the traditional power of the jury to nullify a law or a specific conviction.
In Sparf v. United States, 156 U.S. 51, 39 L. Ed. 343, 15 S. Ct. 273 (1895), the Court ruled that, although a jury does not have the right to decide the law and facts of a case, neither does the judge have the right to instruct a jury that it must convict even if evidence against a defendant is great. See id. at 102, 105-07. After Sparf, in effect "the right [to nullify] was gone, but the power remained."
In Horning v. District of Columbia, 254 U.S. 135, 65 L. Ed. 185, 41 S. Ct. 53 (1920), Justice Holmes, writing for the majority, explicitly acknowledged this power: "the jury has the power to bring in a verdict in the teeth of both law and facts." Id. at 138. The continued prohibition on directed verdicts of guilt, on the set aside of not guilty verdicts, and on the use of special interrogatories in criminal cases, as well as the allowance of inconsistent verdicts, can only be understood as arising from respect for the jury's power to disregard the law and facts of a case in order to serve justice. See United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977) ("A trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict . . . regardless of how overwhelmingly the evidence may point in that direction."); United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 408, 91 L. Ed. 973, 67 S. Ct. 775 (1947) ("A judge may not direct a verdict how conclusive the evidence."); Dunn v. United States, 284 U.S. 390, 393, 76 L. Ed. 356, 52 S. Ct. 189 (1932) ("Consistency in the verdict is not necessary. . . . 'The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.'" (citation omitted)); United States v. Wilson, 629 F.2d 439, 441-44 (6th Cir. 1980) (discussing the reasons against use of special verdict forms in criminal cases).
This respect for nullification flows from the role of the jury as the "conscience of the community" in our criminal justice system. Witherspoon v. Illinois, 391 U.S. 510, 519, & n.15, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968). As Justice White wrote in Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970) (considering whether a criminal jury must have twelve members), "the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence." Id. at 100. This interposition serves the essential purpose of the jury trial, which is "to prevent oppression by the Government."
Id. And it is this essential purpose that is to be used in determining the constitutional requirements of a jury trial. Id. at 99-100 ("The relevant inquiry [in determining the constitutionality of factors affecting jury deliberations], as we see it, must be the function that the particular feature [of the jury system] performs and its relation to the purposes of the jury trial.").
When measured by this standard, a defendant's right to inform the jury of that information essential "to prevent oppression by the Government" is clearly of constitutional magnitude. That is, if community oversight of a criminal prosecution is the primary purpose of a jury trial, then to deny a jury of information necessary to such oversight is to deny a defendant of the full protection to be afforded by jury trial. Indeed, to deny a defendant of the possibility of jury nullification would be to defeat the central purpose of the jury system.
Argument against allowing the jury to hear information that might lead to nullification evinces a fear that the jury might actually serve its primary purpose, that is, it evinces a fear that the community might in fact think a law unjust. The government, whose duty it is to seek justice and not merely conviction, Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), should not shy away from having a jury know the full facts and law of a case. Argument equating jury nullification with anarchy misses the point that in our criminal justice system the law as stated by a judge is secondary to the justice as meted out by a jury of the defendant's peers. We have established the jury as the final arbiter of truth and justice in our criminal justice system; this court must grant the defendant's motion if the jury is to fulfill this duty.
The defendant's request is not novel. Although the Sixth Circuit has not specifically ruled on such a request, other courts of appeals have denied just the type of request before the court today. E.g., United States v. McDonald, 933 F.2d 1519, 1526 (10th Cir. 1991); United States v. Goodface, 835 F.2d 1233, 1237 (8th Cir. 1987); United States v. Cox, 696 F.2d 1294, 1298 (11th Cir. 1983). I believe, however, that the courts denying such a motion have committed two errors. First, they have lost sight of the true purpose of the jury. Second, they have mistakenly read the Supreme Court's cases on the non-necessity of jury sentencing to be a prohibition on giving any information about sentencing to the jury. That is, they have too broadly construed the Court's ...